Federal Court of Australia

DUU16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 85

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant, who is a citizen of Iraq, appeals orders of the Federal Circuit Court of Australia (as it then was) by which his application for judicial review of a decision of the Immigration Assessment Authority was dismissed. By its decision, which was made on 7 November 2016, the Authority affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa. The appeal to this Court was brought upon the Court making orders extending the time for appeal, to which the Minister consented.

2    It is unnecessary to refer to the primary judge’s reasons for judgment, which are published: DUU16 v Minister for Immigration [2019] FCCA 3362. That is because the sole ground of appeal that is advanced on behalf of the appellant does not relate to any ground of review that was argued before the primary judge.

New points on appeal

3    It is the practice of this Court to require that leave be sought to advance as a ground of appeal a matter that was not the subject of any point taken at first instance. There are several reasons for this requirement. Any orders made on appeal are concerned principally with the correction of error. In this case, the appellant was represented at the hearing before the primary judge by competent, experienced counsel, who was instructed by solicitors. It could hardly be said that the primary judge erred by failing to consider an argument that was not raised on behalf of the appellant. In Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ stated –

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

4    In migration cases, it is a feature of the Migration Act 1958 (Cth) that, with some exceptions, original jurisdiction to review migration decisions is vested in the Family and Federal Circuit Court of Australia (Division 2), formerly known as the Federal Circuit Court of Australia. It would undermine the evident object of the relevant provisions of the Migration Act to permit appellants to this Court freely to re-litigate claims on grounds that were not taken below. A further consequence of raising points for the first time on appeal to this Court is that there is no right of appeal available to any party: the only recourse would be an application for special leave to appeal to the High Court of Australia. Having said this, the approach of the Court is not inflexible. The touchstone is whether the granting of leave to raise a new point “is expedient in the interests of justice”: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J), cited in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). There are no firm rules governing when a court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case. In assessing individual cases, the Court commonly looks at the question whether there was any explanation for the point not being raised at first instance, whether there is prejudice to any party, and whether there is any merit in the new point, while at all times having regard to the administration of justice generally. There will be cases where, whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is plainly affected by jurisdictional error should not remain standing.

5    In this appeal, there was no affidavit evidence which explained why the point now sought to be raised was not raised at first instance. It is evident on the materials that different counsel was retained to prepare the written submissions on appeal, and to prepare the draft notice of appeal that was lodged with the application for extension of time. However, counsel who argued the case below then argued the case on appeal. The appellant relied on the change of counsel as the sole reason for the failure to take the point before the primary judge. I am not critical of this explanation, as the explanation was plausible, and no attempt was made by the appellant to contrive the position. Counsel for the appellant also relied on the prejudice to the appellant upon the hypothesis that the decision of the Authority was affected by jurisdictional error and remained on foot, and referred the Court to the appellant’s claims that he feared harm and being killed should he return to Iraq. The Minister did not argue that there was any specific prejudice on the ground that there was some evidence or argument that could have been put below that could not be put on appeal.

6    I have determined that leave to raise the new point should be refused. I am of the clear view that the new point has little merit. This is a sufficient reason to refuse leave. I am of the further view that, having regard to its poor merits, this appeal is a clear instance of a party seeking to engage the appellate jurisdiction of this Court by way of a de facto re-hearing de novo without any acceptable justification for doing so. In making these remarks, I make no criticism of counsel who appeared for the appellant at the hearing, who argued a weak point reliably and skilfully.

Circumstances

7    On 21 May 2015, the appellant lodged an application for a protection visa. On 4 August 2016, a delegate of the Minister refused to grant the visa. The delegate’s decision was then referred to the Immigration Assessment Authority pursuant to part 7AA of the Migration Act. The Authority summarised the appellant’s claims for protection that are relevant to the appeal as follows –

•    He is a national of Iraq and a Shia Muslim from Al Sharish, Al-Qurnah, in Basra Governorate, where he ran a grocery store.

•    His three brothers are all serving in Iraq’s security forces. Brother M and Brother Z are both soldiers in the Iraqi army. Brother H, has been a police officer with the Iraqi army since 2008 and is a high ranking official.

•    …

•    He departed Iraq after being threatened by two criminals, Mr G and Mr K, who are members of a political group and a Shia militia. He thinks that Mr K may have been a member of the Mahdi Army but he is not sure. The Mahdi Army take petrol and kidnap people for ransom, and Brother H had arrested Mr K for this. Mr K and Mr G were against the applicant’s brother because he had arrested them, and other members of their respective groups, and because Brother H worked for the government. In June or July 2012 Mr K came to the applicant’s shop and threatened to kill him if he did not say where his brother was. Mr G threatened the applicant by telephone during August to September 2012. The applicant fears these men will kill him as they have killed a lot of people. Brother H advised the applicant to leave the country, which the applicant did: departing from Basra airport on his own passport. The passport was taken from him by a smuggler in Indonesia.

•    Mr K is now dead but Mr G is still alive. His [sic] and his followers are still after the applicant’s brother. His brother has told him this. His brother has got protection because he is at a high level in the army but the applicant does not have that protection and his brother’s enemies will be waiting for him. The people who threatened him are in Basra. He cannot relocate to other areas of Iraq like Baghdad because it is not safe and there is a war between the Sunnis and the Shia. He cannot go to the areas which are controlled by Islamic State (or Daesh) because they will kill him as a Shia Muslim. You do not know who your enemy is in Iraq.

•    The situation in Iraq is worse now than what it was when he departed. Daesh is occupying parts of Iraq like Mosul and there are militia groups operating and political parties fighting to get position. The security situation is very bad. The police cannot protect him. If he is forced to return to Iraq he will have only two choices: he will either be killed or he will have to join the army for protection, and he does not want to join the army.

8    The Authority accepted that the appellant was a Shia Muslim from an area in the Basra Governorate. The appeal was argued on the premise that Basra is in southern Iraq. Although expressing some doubt about the credibility of the appellant’s claims regarding his brothers given the inconsistent nature of his evidence, the Authority expressed a willingness to accept the appellant’s claim that Brother H was a captain serving in some kind of police unit undertaking operations with the Iraqi army in the Basra Governorate. The Authority was also willing to accept that Brother M and Brother Z were both private soldiers in the Iraqi army. The Authority expressed doubts about the credibility of the appellant’s claims concerning the threats to him by Mr K and Mr G. The Authority stated that it was not satisfied that the appellant was threatened by Mr K and Mr G prior to departing Iraq.

9    The next aspect of the Authority’s decision is relevant to the ground of appeal. The Authority was not satisfied on the available evidence that the appellant would face a real chance of harm if he returned to live in the Basra Governorate. In particular, on the evidence the Authority was not satisfied that the appellant would face a real chance of harm if he returned to his own home in Iraq for the reason of being the brother of a captain and two soldiers in Iraq’s security forces. The terms in which the Authority expressed its reasons for these conclusions are important, and therefore I set them out (with my emphasis in bold, and footnotes omitted) –

14.    While I accept that the applicant’s brothers are all involved in the Iraqi security forces, and that Brother H is a captain with a policing role, I am not satisfied on the available evidence that the applicant would face a real chance of harm if he returned to live in Basrah [sic] Governorate. As has been noted above, Iraq’s Shia militias, and their associated political parties, are currently working in cooperation with Iraq’s security forces, and the evidence does not indicate that they, or criminal groups operating in their areas of influence, are targeting members of Iraq’s security forces. DFAT has reported that working for particular areas of the government can increase vulnerability to deliberate killing by (mainly Sunni) insurgents. Senior and mid-ranking government officials in the law and justice sector, and members of the Iraqi police or security forces, face a moderate to high risk of violence in this regard. DFAT has also reported that the risks to current and former members of the security forces in northern and central Iraq, particularly Shias, increased in mid-2014; noting that there were up to 190 Iraqi soldiers being executed in Tikrit in June 2014 after the area was captured by Daesh. In areas under its control Daesh has frequently abducted members, and former members, of the security or police forces, and members of non-Sunni communities. In such areas there have also been reported instances of Daesh targeting the relatives of members of security forces (in October 2015 Daesh executed 70 members of the Albu Nimr tribe in Ramadi in Anbar Governorate, and the victims were reportedly male relatives of members of ISF, police, and tribal fighters). Daesh has also destroyed the homes of such persons.

15.    The applicant, however, would be returning to an area of Iraq which is a majority Shia area under government control rather than to a northern or western area under the influence of Daesh. Moreover, and although there are credible reports of families of security officials being injured or killed during attacks on the official in their cars or homes, DFAT has no evidence to suggest that in government controlled areas the families of officials or security forces are targeted by insurgent groups as a matter of course. Nor does DFAT report that Shia militias and/or criminal groups are conducting attacks of this kind. The applicant claims that his brothers and their families, and also his parents, are no longer living in Al Sharish, having moved to another location in Basra Governorate which is some 125 kilometres away. At the SHEV interview the applicant said that they had moved because of the threats which had been made against them. The applicant said that his family had had no problem in the new location and that this was because they had not told anyone about their whereabouts. Although I do not accept that the applicant has himself been threatened, I am willing to accept that threats have been made against Brother H given that, as a captain in Iraq’s security forces, he is a mid-ranking official. I accept that the applicant’s brothers have relocated for security reasons and that the applicant’s parents have accompanied them. The applicant, however, has his own home in Al Sharish to which he can return, and his four sisters (who have married men belonging to the same tribe as the applicant’s family) also continue to reside in Al Sharish. The applicant claims that he would be at greater risk than his sisters because he would have to work at the market. Given the nature of Iraqi society, I accept that the applicant would be in public more regularly than his married sisters. Nevertheless, the fact that neither the applicant’s sisters nor their husbands have suffered any harm, or even any threats, indicates that the applicant would likewise face no adverse attention in Al Sharish. On the evidence, I am not satisfied that the applicant would face a real chance of harm if he returned to Al Sharish for reason of being the brother of a captain, and two soldiers, in Iraq’s security forces from Daesh or from criminal networks and/or Shia militias.

…

19.    Given that I do not accept that the applicant has ever been threatened on the basis of the involvement of his brothers in Iraq’s security forces, given the absence of evidence of the targeting of the relatives of members of the security forces in government controlled areas, given that the applicant’s deceased wife’s family have taken no action against him other than requesting that police re-open their investigation of him (which they declined to do), given that returned asylum seekers from Australia have encountered no problems in southern areas like Basra, and given the low levels of violence faced by the Shia Muslim population in Basra Governorate in terms of the sectarian violence perpetrated by Daesh, and broader instances of criminal and generalised violence, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of harm of any kind if he returned to his home area in Basra Governorate, even when all these matters are considered cumulatively. Given this (and given that Iraq does not currently employ military conscription and there is no evidence of Iraq’s government security forces employing forcible recruitment) I am not satisfied that there is a real chance the applicant would be compelled to join the army for protection.

…

10    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and nor did the appellant engage the complementary protection criteria in s 36(2A) of the Act.

The ground of appeal

11    The appellant advanced the following ground of appeal, as re-formulated during the course of the hearing –

1.    The learned primary judge erred in not finding that the Immigration Assessment Authority made a jurisdictional error by failing to consider materially relevant evidence and/or by constructively failing to exercise its jurisdiction where:

(a)    the Authority said, “DFAT has no evidence to suggest that in government controlled areas the families of officials or security forces are targeted by insurgent groups as a matter of course. Nor does DFAT report that Shia militias and/or criminal groups are conducting attacks of this kind.” It also found an “absence of evidence of the targeting of the relatives of members of the security forces” in Basra, southern Iraq to which the Applicant would return (Decision Record, [15], [19]);

(b)    the Authority had before it country information reporting incidents of targeted attacks of civilians perceived to be supporting the Iraqi government, including the relatives of members of Iraq’s security forces, in Basra, southern Iraq to which the Applicant would return;

(c)    the failure to consider that country information was material to the Authority’s conclusion that the Applicant would not face a real chance of harm on return to Iraq.

12    In support of the ground of appeal, the appellant sought to adduce fresh evidence on appeal, namely a copy of guidelines published by the United Nations High Commission on Refugees dated 31 May 2012 and titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers From Iraq” (UNHCR Guidelines). The Authority referred to these Guidelines in several footnotes of its reasons, and it may be inferred that the Guidelines were before the Authority when making its decision. No formal application was made by the appellant pursuant to r 36.57 of the Federal Court Rules 2011 (Cth), which was a point made on behalf of the Minister in submissions. However, that is not of any significance, because until I gave leave enlarging time within which to file a notice of appeal, no appeal was on foot. Although no formal application was filed on behalf of the appellant, the reality is that there would be little practical utility in formal compliance with r 36.57. The ground of appeal to which the further evidence relates is obvious. The evidence which the appellant seeks to have the Court receive has been annexed to an affidavit filed on behalf of the appellant. And I would readily infer that the evidence was not adduced in the court below because it was not relevant to any ground of review advanced in that Court.

13    The appellant’s ground of appeal depends upon an examination of the UNHCR Guidelines. To prevent the appellant having recourse to the Guidelines in argument would deprive the appellant of the ability to advance his case. Counsel for the Minister did not submit that the Minister would be prejudiced if the Court were to receive into evidence on appeal the Guidelines on which the appellant sought to rely. For these reasons, I determined to admit the Guidelines into evidence on the appeal.

The appellant’s submissions

14    Counsel for the appellant submitted that the Authority failed to consider material that was contained in the UNHCR Guidelines, and that such failure amounted to jurisdictional error. Counsel cited Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) –

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

15    The reference in Craig v South Australia at 179 to ignoring “relevant material” is to be understood as including material which, if ignored, would demonstrate a failure to perform the statutory review task conferred on the Authority because of the nature of the claims made, and the material ignored: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Counsel for the appellant also cited the decision of Robertson J of this Court in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99, where his Honour held that the Refugee Review Tribunal had fallen into jurisdictional error by failing to consider “critically relevant corroborative evidence”.

16    Counsel for the appellant submitted that the Authority failed to consider several passages of the UNHCR Guidelines, appearing on pages 14 to 16 thereof. In particular, counsel relied on the following (my emphasis in bold) –

A. Risk Profiles

1. Individuals Associated with (or Perceived to be Supporting) the Iraqi Authorities and the (former) MNF-I/USF-I

Armed groups continue to target civilians associated with, or perceived as supporting, the Iraqi Government. Numerous attacks against members of the ISF, the Sahwa, government officials and employees as well as members of political parties engaged in the political process have been reported…

According to the UN Secretary General’s 28 November 2011 report, covering the period from 7 July 2011 onwards, “[T]here was a marked increase in assassinations of government officials, professionals and security personnel.” Attacks include instances of intimidation, abductions and assassinations, including by the use of improvised explosive devises (IEDs), (suicide) car bombs and targeted killings with firearms equipped with silencers or “sticky bombs” attached to vehicles. Many reports of intimidations and threats are made. Incidents of targeted attacks have been reported in almost all of central and southern Iraq, but particularly in Al-Anbar, Baghdad, Babel, Diyala, Kirkuk, Ninewa and Salah Al-Din Governorates.

UNHCR considers that individuals associated with, or perceived to be supporting the Iraqi authorities, the ISF or the (former) MNF-I/USF-I are, depending on the circumstances of their claim, likely to be in need of international refugee protection on account of their (imputed) political opinion.

…

a)    Government Officials and Employees

Various armed groups are thought to be responsible for targeting persons involved in the Iraqi Government at both the federal and local levels, as well as members of their families and their bodyguards. …

…

Family members, drivers and bodyguards are also at risk of being killed or wounded in attacks and, in some cases, may have been targeted deliberately. …

b)    Former Members of the Iraqi Security Forces (ISF)

…

As highlighted above, in 2010 and 2011 armed groups increased attacks against the ISF in an apparent effort to destabilize the country and undermine confidence in the ability of the Iraqi Government to provide security. Iraqi soldiers and policemen are killed on a daily basis. This trend is expected to continue following the USF-I’s withdrawal from Iraq in December 2011. Members of the Iraqi Police are often particularly targeted: they do not have heavy weapons and equipment and receive less training than the Iraqi Army, and are accordly [sic] reportedly considered the weakest element of the ISF. In 2011, according to Iraqi Government statistics, about 40 per cent of Iraqis killed were ISF members, including 609 Iraqi police and 458 soldiers.

ISF patrols, convoys, checkpoints, army bases and police stations are subject to daily attacks, mainly by roadside bombs and gunfire. Checkpoints are also regularly attacked by sniper fire. The ISF are frequently targeted in larger attacks involving car bombs or suicide bombers, including in multiple coordinated attacks across the country. Major attacks against the ISF in 2011 and 2012, some of them claimed by Al-Qa’eda in Iraq (ISI/AQI), were carried out in Al-Anbar, Babel, Baghdad, Basrah, Diyala, Kirkuk, Ninewa and Salah Al-Din Governorates.

In addition, targeted killings of ISF personnel have been increasing since late 2010. While most attacks occur in the cities of Baghdad and Kirkuk, senior ISF officials have also regularly been targeted in the central governorates of Al-Anbar, Diyala, Ninewa and Salah Al-Din. In southern Iraq, targeted attacks on senior ISF officials are less frequent. …

Members of the ISF are also reportedly singled out for assassination when off-duty, including in their homes, sometimes in apparently coordinated multiple attacks. Attacks on off-duty ISF members, as reported by the media, occur mainly in Ninewa and Kirkuk Governorates, but also in Al-Anbar, Babel, Baghdad, Diyala and Salah Al-Din Governorates. Because members of the ISF, regardless of rank, are often attcked [sic] in their private environment, e.g. their homes or private vehicles, their family members, guards and drivers as well as civilian passers-by are also at risk of being killed or wounded.

…

There are also reports that members of the army, security and intelligence apparatus of the former regime continue to be targeted by armed groups.

(Footnotes omitted.)

17    Counsel for the appellant adopted the written submissions that were filed on behalf of the appellant. In those submissions, counsel submitted that the Authority’s reasons demonstrated that it had failed to consider the above material in at least three ways. First, it was submitted that the Authority had accepted that the appellant’s brother was a captain with a policing role in the Iraqi security forces and that threats had been made against his brother as a “mid ranking official”. Counsel submitted that the Authority had also accepted that the appellant’s two other brothers were private soldiers in the Iraqi army. The next element of the first limb of the appellant’s submissions is important. Counsel submitted in writing, reflecting the terms of the (then) proposed ground of appeal, that –

However, the Authority did not accept that the [appellant] himself faced a real chance of harm on the basis of its finding that there was “no evidence to suggest that in government controlled areas the families of officials or security forces are targeted by insurgent groups” (that is, in Basra and the south of Iraq, where the Authority found the Applicant would return): DR[15] (emphasis added), also DR[19].

18    During the course of oral argument, counsel for the appellant qualified this submission, acknowledging that the quotation from the Authority’s reasons was incomplete, and that the Authority had not stated that there was “no evidence”, but had stated that “DFAT has no evidence”. However, counsel relied on the Authority’s reference at [19] of its reasons to “the absence of evidence of the targeting of security forces in government controlled areas”. As a consequence of this qualification, at the hearing counsel reformulated (a) of the ground of appeal so as to reflect more accurately the Authority’s reasons.

19    Counsel submitted that the UNHCR Guidelines specifically reported that armed groups attacked civilians associated with, or perceived as supporting, the Iraqi government, including family members. It was submitted that the UNHCR Guidelines also specifically reported that such attacks occurred “in almost all of central and southern Iraq”. Counsel submitted that the Authority’s finding that there was “no evidence” of these matters that were specifically the subject of evidence by way of the UNHCR Guidelines strongly supported an inference that material parts of the UNHCR Guidelines were overlooked.

20    The second limb of the submissions of counsel for the appellant was that in the critical passages of its reasons the Authority did not refer to, cite, footnote, or acknowledge the existence of the UNHCR Guidelines in any way. Counsel submitted that this could be contrasted with other elements of the Authority’s reasons which were otherwise comprehensive and fully footnoted. Counsel submitted that in considering the risk of harm from militia groups in the south of Iraq, no process of weighing of evidence and preferring some over the other was disclosed, submitting that the absence of recitation of relevant aspects of the UNHCR Guidelines was indicative of an omission and of ignoring them. In oral argument, counsel for the appellant submitted that for the Authority to engage properly with the question whether the appellant was at risk because of a family connection to his brother who was an officer in an Iraqi security forces, the Authority had to consider important evidence about the risk to family members in the UNHCR Guidelines as well as the other material that it considered.

21    The third limb of the submissions advanced on behalf of the appellant was that the Authority identified no discernible reason for having considered the UNHCR Report, as relevant to attacks on family members, to be immaterial. Counsel submitted that this was not a situation where the omission of relevant material was in consequence of the Authority having considered the material to be unpersuasive, but in consequence of the Authority not having considered it at all.

22    Finally, counsel for the appellant submitted that even if the Court was not inclined to infer that relevant material was overlooked, the Authority’s reasons disclosed no consciousness, nor any consideration, of those incidents of targeted attacks on civilians perceived to be supporting the Iraqi government, including relatives of ISF members, thus demonstrating a substantive failure to perform its statutory task, citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431.

Consideration

23    I will commence by identifying the content of the Authority’s obligation to give reasons.

24    In Australia, there is no free-standing common law duty to give reasons for making a statutory decision: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [43] (French CJ, Crennan, Bell, Gageler and Keene JJ). In the case of the Authority, its obligation to give reasons is statutory, and arises under s 473EA(1) of the Migration Act.

25    The obligation to give reasons is not commensurate with the obligation to consider the review material. The Authority is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based: see Acts Interpretation Act 1901 (Cth), s 25D; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [48] (Flick, Markovic and Banks-Smith JJ). This has the consequence that the fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered: Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; 261 FCR 461 at [49] (McKerracher, Gleeson and Burley JJ). See also, ETA067 v The Republic of Nauru [2018] HCA 46; 360 ALR 228 at [24] (Bell, Keane and Gordon JJ).

26    A submission that the Authority failed to take account of information that was before it runs the risk of inviting the Court to consider whether the information should have been material to the Authority’s path of reasoning, and thereby to slide into a merits-based review of the Authority’s decision: see the observations of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36.

27    I will now identify some of the relevant features of the UNHCR Guidelines. The Guidelines are 214 pages in length, comprising 53 pages of narrative text and 155 pages of tightly spaced footnotes, being 1,415 in number. As indicated by its date, the Guidelines were published on 31 May 2012. They replaced earlier guidelines published in April 2009, which were supplemented by a note issued in 2010.

28    The introduction to the Guidelines stated that the (then) current situation in Iraq was to be characterised as one of “ongoing uncertainty” due to several factors, some of which were identified. The UNHCR’s recommendations with regard to assessing the international protection needs of asylum seekers from Iraq were then summarised. The summary included the following statement (my emphasis in bold) –

UNHCR considers that asylum seekers from Iraq with the following profiles, and depending on the particular circumstances of the individual case, are likely to be in need of international refugee protection. These risk profiles are not necessarily exhaustive, nor is there any hierarchy implied in the order in which they are presented:

(i)    individuals associated with (or perceived to be supporting) the Iraqi authorities, the Iraqi Security Forces (ISF) or the former foreign forces in Iraq (Multinational Forces in Iraq, MNF-I or US Forces in Iraq, USF-I);

…

29    On page 13 of the Guidelines, the following two paragraphs appear under the heading “Eligibility for International Protection” (my emphasis in bold) –

UNHCR recommends that all claims by asylum-seekers from Iraq be considered on their individual merits in fair and efficient refugee status determination procedures, taking into account up-to-date and relevant country of origin information. UNHCR considers that, depending on the particular details of their claims, individuals with profiles and in circumstances similar to those outlined below are likely to be in need of international refugee protection in the sense of the 1951 Convention and the 1967 Protocol.

This listing is not exhaustive and is based on information available to UNHCR as at 18 March 2012. An individual’s claim is not without merit simply because he or she does not fall within any of the profiles identified below. Similarly, not all persons falling within these risk profiles will necessarily be in need of international refugee protection: in the assessment of whether or not a claimant would be likely to be exposed to persecution or serious harm upon return, the specific elements of the individual claim are decisive. Certain claims by asylum-seekers from Iraq, including of those possibly falling within risk profiles described in these guidelines, will require examination for possible exclusion from refugee status.

(Footnotes omitted.)

30    The passages of the Guidelines which counsel for the appellant submitted the Authority failed to take into account appear on pages 14 to 16 under the heading “Risk Profiles”, and I set the passages out earlier in these reasons. The Guidelines identified specific groups that might be associated with or perceived to be supporting the Iraqi authorities, and relevant to the present case those groups included, first, government officials and employees, and second, members of the Iraqi security forces. The passages from the Guidelines on which the appellant relied are found under the headings “(a) Government Officials and Employees” and “(b) Former Members of the Iraqi Security Forces (ISF)”. However, the text appearing underneath this second heading appears not to be concerned solely with former members of the Iraqi security forces, but to include current members.

31    It was open to the Authority to think that the passages in the Guidelines under the heading “Government Officials and Employees” were concerned with high ranking government officials and other government employees, former members of the Iraqi government, and Iraqi judges as the text of the passages would indicate. The information in the Guidelines was that family members of those persons may have been the subject of targeted attacks. On the other hand, the passages under the heading “Former Members of the Iraqi Security Forces (ISF)” did not refer to targeted attacks on family of members of the Iraqi security forces, but of a collateral risk that arose because family members might be present with a member of the security forces in a private environment, when the member of the security forces was the subject of a targeted attack.

32    I now turn to consider the appellant’s submissions against the Authority’s reasons. The material parts of the Authority’s reasons which the appellant sought to impugn cited a “DFAT Country Report: Iraq”, which was dated 13 February 2015. At the time of the Authority’s decision, that report was much more recent than the 2012 UNHCR Guidelines, which is evident from the several features of the DFAT Report to which the Authority referred in its reasons. The UNHCR Guidelines had been published more than four and a half years prior to the Authority’s decision. It was open to the Authority, especially in view of guidance in the Guidelines that account should be taken of “up-to-date and relevant country of origin information”, to rely on the information contained in the DFAT Report of 13 February 2015, rather than the country information in the Guidelines, which it was open to the Authority to regard as not being on point and therefore not material. There is no sufficient foundation to find that the Authority did not consider the Guidelines. An equally if not more probable inference is that the Authority regarded the relevant passages in the Guidelines relied on by the appellant to be immaterial, and the absence of any reference to them is readily explicable on this ground. And because the country information in the DFAT Report was much more recent, in not considering the Guidelines to be material, there was no failure by the Authority to perform its statutory task.

33    Finally, as to the submission by counsel for the appellant that the Authority’s reasons disclose no consciousness, nor any consideration, of those incidents of targeted attacks on civilians perceived to be supporting the Iraqi government, including relatives of Iraqi security force members, that is not the case, as [15] of the Authority’s reasons shows. Further, in MZYTS, which counsel for the appellant cited in written submissions, the failure of the Refugee Review Tribunal to consider more recent information was held to amount to a failure by the Tribunal to perform its statutory task by failing to form the state of satisfaction required for the purposes of the review: see [31] and [46] (Kenny, Griffiths and Mortimer JJ). That is not the position here.

Conclusions

34    There is little by way of explanation as to why the appellant did not raise the point now sought to be agitated at first instance. Moreover, I am of the view that for the reasons I have given, the ground of appeal sought to be agitated has little merit. This is as likely a reason as any as to why the point was not taken below. I refuse leave to the appellant to rely on the ground of appeal, and I dismiss the appeal with costs.

Associate:

Dated:    14 February 2023